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Tuesday, May 26, 2009

From the dissent

Yay, Justice Moreno, who had been suggested as a SCOTUS candidate. I suspect his chances for that are scuppered by this dissenting opinion:

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

3 comments:

well, at least one of these constitutionally privledged has their head screwed on right.

I really don't believe some of the justices believe this. I think they were afraid of recall.

And recall is... what? Should be a badge of honor for doing the right thing, but we regularly misconstrue success (regardless of whether in business or the judicial system) as some kind of hands-off judgement.

And why?

Because most folks are go along (with the majority) kinds of people that don't have the good sense God gave them to really think about issues, let alone logic things through.

I used to think of the US as a top-notch country. In my own 55 year lifetime, we have become the brut and the stoopid...

How the hell did that EVER happen?!

We once prided ourselves on the moral upper-ground. Now some of us support torture when, ten years ago, this would have been unspeakable.

Moreno gets it. Let us hope that--as this issue moves forward in its various social, political and legal ways--that some kind of calming of rhetoric and fear occurs.